Decision Date: 10/23/95 Archive Date: 01/17/96
DOCKET NO. 93-05 410 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma
THE ISSUES
1. Entitlement to restoration of a 100 percent evaluation
for the service-connected disability manifested by increased
cup to disk ratio with macular chorioretinal scars and
presbyopia with past history of trauma and glaucoma,
currently evaluated as 10 percent disabling.
2. Entitlement to restoration of special monthly
compensation under 38 U.S.C.A. § 3.114(l) and 38 C.F.R.
§ 3.350(b) on account of blindness in both eyes having visual
fields of 5 degrees or less.
REPRESENTATION
Appellant represented by: Blinded Veterans Association
ATTORNEY FOR THE BOARD
Ripley P. Schoenberger, Counsel
INTRODUCTION
The veteran served on active duty from March 1968 to November
1969.
By rating decision of April 1992, the RO proposed to reduce
the 100 percent evaluation for the veteran's service-
connected eye disorder and terminate entitlement to special
monthly compensation. By rating decision of September 1992,
the evaluation for the veteran's service-connected eye
disorder was reduced to 10 percent disabling and the
veteran's entitlement to special monthly compensation was
terminated, effective on May 1, 1992. The 100 percent
evaluation and entitlement to special monthly compensation
had been in effect since October 15, 1990. In July 1994, the
Board of Veterans' Appeals (Board) remanded the case for
development of the record. The veteran failed to report for
a VA ophthalmological examination scheduled in January 1995,
and the case has been returned to the Board for appellate
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that the VA arbitrarily reduced his
evaluation by using incorrect diagnostic tests. He states
that the law requires that his visual fields be tested by
approved methods. When his visual fields are tested by
approved methods his field vision is reduced to 5 degrees in
both eyes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the claims for restoration of the
100 percent evaluation and special monthly compensation for
the veteran's service-connected eye disorder must be denied
by operation of law.
FINDINGS OF FACT
1. VA testing performed in October 1990 was interpreted as
showing restriction of the veteran's visual fields to
3 degrees in each eye. The cause of this restriction was not
identified.
2. Visual field testing in January 1992 showing severe
tunnel fields was deemed to be “inconsistent” with end stage
glaucoma because subsequent gonioscopy revealed complete open
angles of 360 degrees in both eyes and funduscopic
examination showed .8 to .85 cup to disk ratio with a
significant amount of temporal rim remaining in both eyes;
subsequent retinal examination revealed findings shown only
in “functional patients.”
3. On an April 1992 field visit, a VA representative
reported that the veteran was employed full time and drove to
and from work and from place to place on the job. The
veteran indicated that his vision had improved with his
glasses and that he was 20/20 in one eye and 20/40 in the
other.
4. VA ophthalmological examination performed in June 1992
reported that the veteran's vision was 20/30 in the right eye
and 20/40 in the left eye. His confrontational fields
"spiraled in" and were determined not to be consistent with
glaucomatous damage, but indicative of functional visual
problems.
5. Private treatment records submitted in January 1993
variously indicate that the restriction of the veteran’s
visual fields is due to glaucoma and a psychological
component.
6. The veteran failed to report without good cause for a VA
ophthalmological examination scheduled in January 1995 in
order to determine the etiology of his restricted visual
fields.
CONCLUSIONS OF LAW
1. The claim for restoration of the 100 percent evaluation
for increased cup to disk ratio with macular chorioretinal
scars and presbyopia with past history of trauma and glaucoma
must be denied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991);
38 C.F.R. §§ 3.102, 3.321, 3.655, 4.7, 4.76, 4.84(a),
Diagnostic Codes 6009, 6013, 6067, 6071, 6080 (1994).
2. The claim for restoration of the special monthly
compensation under 38 U.S.C.A. § 3.114(l) and 38 C.F.R.
§ 3.350(b) on account of blindness in both eyes having visual
fields of 5 degrees or less must be denied. 38 U.S.C.A.
§§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321,
3.655, 4.7, 3.350(b) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Historical
The service medical records show that in March 1969 the
veteran was involved in a fight and was hit in the right
occipital region and the right cheek. X-rays reportedly
disclosed a right occipital, linear, nondisplaced skull
fracture and a possible fracture of the right orbital floor.
The physical examination disclosed marked ecchymosis and
swelling of the right zygote area and both the upper and
lower lids of the right eye. There was hypesthesia in the
distribution of the right infraorbital nerve. There was
subconjunctival hemorrhage in the right eye. The pupils were
round, regular and reacted to light. There was diplopia “in
the right eye” with upper gaze. There was no obvious
restriction of the globe. Funduscopic examination was
negative. Consultation by the ophthalmologist disclosed that
the vision in the right eye was 20/25 and the vision in the
left eye was 20/20. While hospitalized the veteran underwent
exploratory surgery and it was determined that the right
orbital floor was intact and normal in appearance.
Postoperatively, the diplopia cleared. In August 1969 the
veteran was seen in the ophthalmology department. At that
time it was reported that his vision was 20/20 in both eyes
and he had good muscle balance in both eyes. The examiner
commented that there were no residuals from the injury or
surgery, and glasses were not needed.
On VA ophthalmological examination, conducted in March 1977,
it was reported that the veteran's vision was 20/20 in both
eyes. Internal examination was negative. It was reported
that the veteran had a high amount of astigmatism in the
right eye, probably due to injury or surgery.
By rating decision of March 1977, the RO granted service
connection for diplopia and astigmatism due to trauma, and
assigned a 10 percent evaluation.
On a VA ophthalmological examination, performed in April
1990, it was reported that the intraocular pressure in the
right eye was 18 and the intraocular pressure in the left eye
was 21. Testing of visual fields showed severe tunnel
fields. The assessment was that of progressing chronic open
angle glaucoma, progressive deterioration of the visual
fields in both eyes, glaucomatous optic nerve damage, and
unstable intraocular pressures.
By a rating decision of April 1990 service connection was
also granted for glaucoma and the evaluation for the
veteran's service-connected eye disorder was increased to
50 percent disabling.
Testing of the veteran's visual fields, performed in August
1990, revealed that the veteran had 7 degrees of visual field
in his right eye and 8 degrees of visual field in his left
eye.
By rating decision of September 1990 the evaluation for the
veteran's service-connected eye disorder was increased to
70 percent disabling.
A VA ophthalmological examination, performed in mid-August
1990, reported that the veteran's visual acuity was 20/30 in
both eyes. The intraocular pressure in his right eye was 17
and the intraocular pressure in his left eye was 15. It was
reported that he had 3 degrees of visual fields in both eyes.
By rating decision of October 1990, the evaluation for the
veteran's service-connected eye disorder was increased to
100 percent and he was found entitled to special monthly
compensation on account of blindness in both eyes having
visual fields of 5 degrees or less. The assigned effective
date was October 15, 1990.
In January 1992 the veteran was examined for VA at the
department of ophthalmology of his State university with a
history of a diagnosis of chronic open-angle glaucoma. He
had taken medication and applanation tonometry readings had
remained fairly consistent under 20 millimeters of mercury in
both eyes. Testing of his visual fields showed severe tunnel
fields with a complete black periphery beyond 10 degrees.
When seen by the glaucoma specialist, the veteran was tested
with a gonioscopy. This test revealed completely open angles
of 360 degrees in both eyes. Slit lamp examination was
unremarkable for a trace nuclear sclerotic lens changes in
both eyes. Funduscopic examination revealed between .8 and
.85 cup to disk ratio in both eyes with a significant amount
of temporal rim remaining. The temporal rim was also pink in
coloration. Thus, it was concluded that the testing of the
veteran's visual fields was inconsistent with the cup to disc
ratio noted on the examination.
The veteran returned to that facility for further testing in
late January 1992. At that time it was noted that his pupils
were without any afferent pupillary defect and a
confrontational visual field test, both at near
(approximately one-third of a meter from the patient) and
then repeated at 3 meters, noted that the veteran's
confrontational field tests were smaller at 3 meters in the
left eye and that the confrontational fields did not “spiral
outward” at 3 meters in the right eye. These results were
reported to be only found in “functional patients.” It was
estimated that the veteran's maculae had 20/20 potential
visual acuity in both eyes.
In April 1992 a VA service officer contacted the veteran at
his place of employment. The veteran reported that he was
employed as a social worker and that he drove his car back
and forth to work. In addition, his job required him to
drive to different places. He stated that the vision in his
eyes had improved. He reported that, with glasses, his
vision was 20/20 in one eye and 20/40 in the other eye.
On VA ophthalmological examination, performed in June 1992,
it was reported that an extensive review of the veteran's
clinical charts was made, and it was evident that the veteran
had had very few elevations in ocular pressure over 20. He
had also shown gross aberrations in his confrontational
visual fields and visual acuity testing. His distant vision
was corrected to 20/30 in the right eye and 20/40 in the left
eye. The intraocular pressure was 19 in the right eye and 16
in the left eye. Repeat testing revealed the pressure was 16
in the right eye and 17 in the left eye. There was no
evidence of diplopia. Confrontational visual field tests
showed that the veteran's visual field defect "spirals in."
This narrowing of the visual field at distance was noted by
the examiner not to be “consistent with glaucomatous visual
field damage and [was] more indicative of functional visual
field problems.” The slit-lamp examination showed a normal
anterior segment with dilated eyes. The cup to disk ratio on
the right was approximately .75 x .7 and on the left .8 x .8.
The rim was thin but present in both eyes. There were small,
approximately 200-micron-in-size spots of retinal pigment,
located inferior to the macula on the right eye and in the
vicinity of the fovea on the left eye. The pertinent
diagnosis was that of increased cup to disk ratio in a
patient treated for glaucoma. The examiner noted that the
veteran had shown marked "functional" constriction of his
visual fields that were not consistent with his degree of
cupping. Because of the long documentation of normal
intraocular pressure and the failure of progression of his
optic nerve head cupping, it was felt that he most likely did
not have progressive glaucomatous damage. In addition, the
examiner noted that the veteran’s “spiraling” in of the
visual fields was a functional problem and was not consistent
with any other type of medical optic nerve disease. The
diagnoses also included macular chorioretinal scars of
unknown etiology, possibly old and not progressive, and
presbyopia.
Copies of private medical reports, dated in May and August
1992 but received at the RO in January 1993, reported
10 degrees or so of the veteran’s central field of vision
remained in each eye. The diagnosis was glaucoma. A May
1992 office note from a private physician states that for the
past several months the veteran had been more anxious and
depressed about his visual loss. The veteran felt that when
he was upset he had a decrease in his peripheral vision. He
wondered if medication might help relieve some of his
anxieties and depression.
In an April 1992 statement, M. J. Weiss, M.D., reported that
the veteran had glaucoma in both eyes and needed to use drops
to keep his pressure down so that he did not go blind. He
also indicated that the veteran had macular changes probably
due to vitelliform dystrophy in each eye.
In a December 1992 letter, a psychiatrist stated that he had
seen the veteran on several occasions because of visual
problems. The veteran reported that he had had glaucoma for
the last three years and had undergone laser surgery. The
psychiatrist stated that he had discussed with the veteran
the effect that stress could be having on his (the veteran’s)
vision. The veteran reported that, at times, his restricted
visual fields became even more restricted and tubular. The
episodes might last for minutes, hours, or days. As a result
of the psychological component of the veteran’s visual loss,
he was taking medication to relieve anxiety and tension.
The veteran failed to report for a VA ophthalmological
examination scheduled in January 1995. He indicated in a
January 1995 statement that he would not be keeping his
appointment and requested that any decision be made from the
existing records.
II. Restoration of the 100 Percent Evaluation.
The Board finds that the veteran's claim for restoration of
the 100 percent evaluation and special monthly compensation
for his service-connected eye disorder is "well-grounded"
within the meaning of 38 U.S.C.A. § 5107(a).
Unhealed injuries of the eye, in their chronic form, are to
be rated from 10 percent to 100 percent for impairment of
visual acuity or field loss, pain, rest requirements, or
episodic incapacity, combining an additional rating of
10 percent during continuance of active pathology. A minimum
10 percent rating will be assigned during active pathology.
38 C.F.R. § 4.84, Diagnostic Code 6009.
Glaucoma is rated on the impairment of visual acuity or field
loss. A minimum rating of 10 percent will be assigned.
38 C.F.R. § 4.84, Diagnostic Code 6013.
When vision in one eye is 5/200 and the vision in the other
eye is 5/200, a 100 percent evaluation is assigned.
38 C.F.R. § 4.84(a), Diagnostic Code 6071. When vision in
one eye is 20/40 and the vision in the other eye is 20/40, a
noncompensable evaluation is assigned. Diagnostic Code 6079.
When the visual field is contracted to a concentric circle of
5 degrees in both eyes, a 100 percent evaluation is assigned.
When the visual field is contracted to 15 degrees, but not to
5 degrees, in both eyes, a 70 percent evaluation is assigned.
When the visual field is contracted to 30 degrees, but not to
15 degrees in both eyes, a 50 percent evaluation is assigned.
When the visual field is contracted to 45 degrees, but not to
30 degrees, in both eyes, a 30 percent evaluation is
assigned. When the visual field is contracted to 60 degrees,
but not to 45 degrees in both eyes, a 20 percent evaluation
is assigned. Concentric contraction resulting from
demonstrable pathology to 5 degrees or less will be
considered on a parity with reduction of central visual
acuity to 5/200 or less for all purposes, including
entitlement under 38 C.F.R. § 3.350(b). 38 C.F.R. § 4.84(a)
Diagnostic Code 6080.
Measurements of the visual field will be made when there is
disease of the optic nerve or when otherwise indicated. The
usual perimetric methods will be employed, using a standard
perimeter and 3-millimeter white test objects. The charts
will be made a part of the record of examination. Not less
than two records, and when possible, three will be made. The
minimum limit for this function is established as a
concentric central contraction of the visual field to
5 degrees. This type of contraction of the visual field
reduces the visual efficiency to zero. 38 C.F.R. § 4.76.
The veteran maintains that the 100 percent evaluation for his
visual problem should be restored. However, the Board notes
that the increased benefits were initially assigned based on
testing showing uninterpreted data and without medical
opinion identifying the nature or etiology of the reported
field loss. The RO first proposed to reduce the 100 percent
evaluation, on the basis of material improvement, after
January 1992 examinations revealed findings and medical
opinion that the veteran’s field vision defect was functional
in nature, rather than due to organic cause, and based on a
field examination during which the veteran himself was
reported to have indicated that his vision had improved.
Moreover, the field examiner determined that the veteran
drove to and from work and that his employment required him
to drive to different places to perform his job. This
clearly suggested that the veteran was having no serious
problems functioning under the ordinary conditions incident
to his life. The subsequent VA examination in June 1992
confirmed that the veteran had “marked ‘functional’
constriction of his visual fields” and stated that he did not
have “progressive glaucomatous damage.” Subsequently
received private medical records indicated that the veteran
had a significant visual field loss and suggested that this
was due to glaucoma. In addition, the December 1992 letter
from the veteran’s private physician suggested that there was
a psychological component to the veteran's loss of vision
related to stress and that he was taking medication to
relieve anxiety and tension. Based on its review of the
record, the Board determined that the evidence was unclear as
to the actual cause of the restriction of the veteran’s
visual fields when it remanded the case for additional
development in July 1994. Dofflemyer v. Derwinski, 2
Vet.App. 277 (1992).
It is unfortunate that the veteran failed to report for the
VA ophthalmological examination scheduled in January 1995.
38 C.F.R. § 3.655 states that, when a veteran, without good
cause, fails to report for an examination, VA must deny his
claim. The veteran did not report for the special
ophthalmological examination scheduled in January 1995, and
his letter received by the RO in that month did not suggest
that he had good cause for not reporting for the required
examination. “The duty to assist is not always a one-way
street. If a veteran wishes help, he cannot passively wait
for it in those circumstances where he may or should have
information that is essential in obtaining putative
evidence.” Wood v. Derwinski, 1 Vet.App. 190 (1991).
The Board notes that the provisions of 38 C.F.R.§ 3.344 do
not apply because benefits at an increased rate had been in
effect for a period of less than two years prior to the
reduction. While 38 C.F.R.§ 3.343 provides that a total
schedular rating will not be reduced, in the absence of clear
error, without examination showing material improvement, the
RO in its reduction action found that there had had been
material improvement shown in the January and June 1992
examinations and during a field examination. The Board
remanded the case for an examination based on consideration
of subsequently received medical evidence which suggested
that the veteran’s restriction of visual fields was due to
organic disease. See Dofflemyer. Because the veteran did
not report for the ophthalmological examination scheduled in
January 1995, the Board is precluded from further review of
the veteran’s claim on the merits. Consequently, given the
veteran’s failure to report for the scheduled examination,
the claim for restoration of a 100 percent evaluation for the
service-connected disability, manifested by increased cup to
disk ratio with macular chorioretinal scars and presbyopia
with past history of trauma and glaucoma must be denied in
accordance with the provisions of 38 C.F.R.§ 3.655.
III. Special Monthly Compensation
Again, the Board finds that the veteran's claim for
restoration of special monthly compensation under 38 U.S.C.A.
§ 3.114(l) and 38 C.F.R. § 3.350(b) on account of blindness
in both eyes having visual fields of 5 degrees or less is
well grounded.
Special monthly compensation provided by 38 U.S.C.A.
§ 1114(l) is payable for the blindness in both eyes with
visual acuity 5/200 or less. 38 C.F.R. § 3.350(b).
As has been explained hereinabove, given the veteran’s
failure to report for the scheduled examination in January
1995 without good cause, the claim for restoration of special
monthly compensation benefits also must be denied by
operation of law.
ORDER
The claim for restoration of a 100 percent evaluation for
increased cup to disk ratio with macular chorioretinal scars
and presbyopia with a past history of trauma and glaucoma is
denied.
The claim for restoration of special monthly compensation
under 38 U.S.C.A. § 3.114(l) and 38 C.F.R. § 3.350(b), on
account of blindness in both eyes having visual fields of
5 degrees or less is denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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